A split three judge panel from the Eleventh Circuit Court of Appeals ruled that there is no Title VII protection for sexual orientation discrimination. In Evans v. Georgia Regional Hosp. et al., Eleventh Circuit Judges William Pryor and Robin Rosenbaum, as well as District Judge Martinez, sitting by designation from the Southern District of Florida, addressed this issue for the first time on behalf of the Eleventh Circuit. The majority opinion relied upon binding precedent from the previous Fifth Circuit in recognizing that a plaintiff may not state a claim for sex discrimination or gender stereotyping solely by alleging that they were treated differently due to their sexual orientation.
The concurrence and the dissent in this case show the divisions over this issue. Judge Pryor concurred specially to address the arguments made by the dissent and the EEOC. In his concurrence, Judge Pryor noted the difference between a sexual orientation discrimination claim, which he reasoned cannot be brought under Title VII, and gender stereotyping or gender non-conformity claim, which he found is actionable. Judge Pryor noted that a gender non-conformity claim “is, and always has been, behavior based.” On the other hand, discrimination claims based upon sexual orientation, standing alone and not based upon actions or behavior of the plaintiff, are status-based, and “[s]tatus-based protections must stem from a separate doctrine or directly from the text of Title VII.” Because sexual orientation is not identified as a protected class within the statute, Judge Pryor opined that it is not protected by Title VII, and that any such protection must come from Congress amending the statute, as opposed to the judiciary.
Judge Rosenbaum’s dissent argued that “discrimination against an employee solely because she fails to conform to the employer’s view that a woman should be sexually attracted to men only” is necessarily a claim for gender non-conformity.
Because the panel concluded that the plaintiff’s sexual orientation discrimination claims are barred by binding precedent, and binding Eleventh Circuit precedent may only be overruled by a subsequent opinion by either the full Eleventh Circuit (referred to as an en banc decision) or a decision of the Supreme Court, it is likely that the plaintiff in this case will seek to have this case reheard en banc. Indeed, Judge Rosenbaum expressly urged the court to rehear this case en banc in her dissent.
Unless and until further action is taken, an employee in the Eleventh Circuit may not pursue a claim for discrimination based solely upon his or her sexual orientation. Employers should continue to recognize, however, that gender stereotyping — based upon an employee’s behavior in acting (or failing to act) in accordance with gender norms — constitutes an actionable form of sex discrimination.